AMALGAMATED PRESS LTD. v. INDEPENDENT PRESS LTD AND ANOTHER [1960] GLR 113

DIVISION: IN THE HIGH COURT (LANDS DIVISION), ACCRA

DATE: 3RD MAY, 1960

BEFORE: OLLENNU J..

CASES REFERRED TO

(1) Swanzy v. Swanzy (1858) 27 L.J. Ch. 419;

(2) Cowell v. Taylor (1885) 31 Ch.D. 34.

[p.114] of [1960] GLR 113

NATURE OF PROCEEDINGS

APPLICATION for security for costs.

COUNSEL

Nii Odoi Annan for plaintiffs.

Lokko for defendants (applicants).

JUDGMENT OF OLLENNU J.

In this matter the defendants pray for an order upon the plaintiff to provide security for costs. This application is made in pursuance of Order 65 rule 4 of the Supreme Court (Civil Procedure) Rules 1954, which says: “In any cause or matter in which security for costs is required the security shall be of such amount, and be given at such times, and in such manner and form, as the Court or a Judge shall direct.”

The grounds for the application are set out in paragraphs 2, 3 and 4 of the affidavit in support of the application and are:

(a) that the plaintiff company is a nominal plaintiff irregularly incorporated, and has no visible means of paying any costs which may be awarded against it and;

(b) that the plaintiff company has been unable to pay fully, costs awarded against it in favour of the defendants as far back as April, 1957, in a similar suit instituted by the plaintiff against the same defendants in respect of the same subject matter, which former suit the plaintiff was obliged to discontinue.

Although the words “ in any cause or matter in which security for costs is required” in Order 65 rule 4 appear very wide, and give the impression that security for costs may be ordered in any case in which it is required, the authorities, based upon a rule in identical words in the Rules of the Supreme Court of England (together with rules 5 and 6 of Order 65 of the Ghana Civil Procedure Rules, 1954) show that these words are limited in scope, and apply only to causes and matters in which certain conditions exist. The cases in which the court may order security for costs include the following:

(1) where the plaintiff resides abroad—Order 65 rules 5 and 6 of the Civil Procedure Rules, 1954;

(2) where the plaintiff’s place of residence is not stated or is incorrectly stated, or where he appears to have no permanent residence. Swanzy v. Swanzy (27 L.J. Ch. 419);

(3) where the plaintiff is insolvent and sues as a nominal plaintiff, Cowell v. Taylor (31 Ch. D. 34);

(4) where the plaintiff is a limited liability company, in liquidation, or has sold its business.

This subject of security for costs is discussed in full in The Annual Practice under Order 65 rule 6.

Thus, if the plaintiff company is a nominal plaintiff in the legal sense, for example an insolvent suing for the benefit of another person, the court could order him to give security for costs. Insolvency or poverty of a plaintiff is not by itself a ground for requiring him to give security for costs: see Cowell v. Taylor (31 Ch.D. 34). Consequently non-payment of costs awarded against a plaintiff in a previous suit, standing alone, will also not be a ground for requiring the plaintiff [p.115] of [1960] GLR 113 to give security for costs in a fresh suit but an habitual non-payment of costs awarded against a party in suits instituted by him, and particularly where that party is a limited liability company, not engaged in any active business, could be evidence of insolvency of the limited liability company, and would be a good ground for an order for security for costs. The applicants have not been able to show that the plaintiff company comes within the category of persons against whom the court may make an order for security for costs. The application is therefore dismissed with costs.

DECISION

Application dismissed.